Most studies find that like the temperature, divorce rates spike in August — and theories abound for why this happens. Some say that instead of being a time for bonding, summer vacation emphasizes marital problems. Others speculate that parents may feel their children are more distracted in the fall when they are back in school. Still others suggest that by filing in August, couples may hope to complete the process before the holidays.
Regardless of when you file, the Mississippi legislature once again has declined to enact a true no-fault divorce procedure. Mississippi does allow a couple to agree to get a divorce based on proof that the marriage is irretrievably broken and irreconcilable differences exist. This is known as an irreconcilable differences, or “ID,” divorce.
Under an ID divorce, the spouses must agree to get a divorce, but they do not need to plead and prove marital misconduct for the court to grant it. However, eliminating the need to allocate blame in an ID divorce does not mean all decisions regarding the divorce are now straightforward. The spouses still may disagree about the property settlement or child custody. However, even if the parties can’t agree on custody or how to resolve their financial matters, if both spouses agree to get the ID divorce, they can agree to submit the disputed custody or financial matters to a judge for a decision. This could include a judgment on what is or is not a marital asset and what is an equitable division of the marital assets.
In an ID divorce situation, if a spouse refuses to agree to a divorce, he or she can’t be forced to comply without the other spouse alleging and proving fault grounds. This means if the spouse who wants the divorce can’t prove a “fault” basis or legal ground (which is usually marital misconduct) for the divorce, he or she can’t obtain it from an unwilling spouse. This can lead to a situation in which one spouse (who is faultless in the divorce) can hold out on the spouse who wants the divorce to try to secure a more favorable financial settlement.
Therefore, the main difference between an ID divorce and a true no-fault divorce, normally available in other states, is that in a true no-fault divorce, if one spouse wants to get a divorce, he or she can get it even without alleging fault against the other spouse.
Kathy Brown van Zutphen of Coastwide Law LLC is an attorney licensed to practice law in Alabama and Mississippi. She focuses on the “elder law” areas of trusts, estates and conservatorships. Additionally, she litigates lawsuits and represents small business owners as part of her legal practice. Visit https://coastwidelaw.com/ to learn more or reach her at her office: (228) 357-5227.
